United States District Court, D. Massachusetts
JEANNE M. KILMOWICZ, Plaintiff,
DEUTSCHE BANK NATIONAL TRUST COMPANY AS INDENTURE TRUSTEE FOR NEW CENTURY HOME EQUITY LOAN TRUST 2005-1, and CARRINGTON MORTGAGE SERVICES, LLC, Defendant.
ORDER ON MOTION FOR TRO
TIMOTHY S. HILLMAN, District Judge.
17, 20016, Plaintiff, Jeanne M. Kilmowicz
("Plaintiff") filed a Complaint against Deutsche
Bank National Trust Company as Indenture Trustee For New
Century Home Equity Loan Trust 2005-1 ("Deutsche
Bank"), and Carrington Mortgage Services, LLC
("Carrington") alleging claims for wrongful
foreclosure, violation of the Massachusetts Consumer
Protection Act, Mass.Gen.L. ch. 93A, breach of the covenant
of good faith and fair dealing and negligent infliction of
emotional distress. More specifically, Plaintiff asserts that
"Deutsche Bank wrongfully acquired title to the mortgage
of the subject property through a pattern of intentional
fraudulent conduct[, i.e. ] the [a]ssignment of a
mortgage from a company no longer in existence, to a mortgage
[t]rust that had closed to new mortgages years before the
[a]ssignment." Complaint, at ¶42. Among the
relief sought by the Plaintiff is that this Court vacate and
set aside the Final Judgment of Foreclosure which was entered
by the Massachusetts Land Court on the grounds that the
judgment was obtained by fraud and because, under the
circumstances, vacating the judgment is appropriate to
accomplish the ends of justice. Plaintiff seeks this relief
in accordance with Massachusetts state law, Mass. R.Civ. P.
60(b). Plaintiff also seeks the entry of an injunction
prohibiting any further post-foreclosure proceedings by any
party, the entry of an injunction prohibiting any further
post-foreclosure proceedings including any eviction or other
proceedings related to the property by the Massachusetts
Housing Court or any other court which would command any
action on the part of the Plaintiff. Lastly, Plaitniff seeks
to be fully reimbursed for the cost of her home and other
compensatory and punitive damages.
Order addresses Plaintiff's Motion for Temporary
Restraining Order Without Notice (Docket No.
5). Because Plaintiff has failed to show a
likelihood of success on the merits, that motion is denied.
evaluating a motion for a temporary restraining order, the
Court considers the same four factors that apply to a motion
for preliminary injunction, that is: the likelihood the
movant will succeed on the merits, whether the movant is
likely to suffer irreparable harm in the absence preliminary
relief, the balance of equities, and whether an injunction is
in the public interest. Voice Of The Arab World, Inc. v.
MDTV Medical News Now, Inc., 645 F.3d 26, 32 (1st Cir.
2011). While all four factors must be weighed, the moving
party's likelihood of success on the merits is "the
touchstone of the preliminary injunction inquiry."
Philip Morris, Inc. v. Harshbarger, 159 F.3d 670,
674 (1st Cir.1998). "[I]f the moving party
cannot demonstrate that he is likely to succeed in
his quest, the remaining factors become matters of idle
curiosity." Maine Educ. Ass'n, 695 F.3d at
152 (quoting New Comm Wireless Servs., Inc. v. SprintCom,
Inc., 287 F.3d 1, 9 (1st Cir.2002)) (emphasis added).
The moving party bears the burden of proof for each of these
four factors. Nieves-Marquez v. Puerto Rico, 353
F.3d 108, 120 (1st Cir. 2003).
case, Plaintiff, citing a state procedural rule, seeks to
have this Court vacate a judgment of foreclosure entered by a
Massachusetts state court. Plaintiff further seeks to have
this Court enjoin the Massachusetts Housing Court from
issuing an execution for possession. First, Plaintiff has not
named the Massachusetts Housing Court as a party in in this
case and therefore, despite the relief requested in her
Complaint, I assume what she is actually seeking is an order
enjoining the Defendants from moving on the execution for
possession, i.e., evicting her from the residence.
Under either scenario, Plaintiff has not cited to any legal
authority which would support her extraordinary request.
Moreover, Plaintiff seeks to raise legal issues in this Court
which were either rejected by the state court, or could have
been raised in the state court proceedings. Finally,
Plaintiff asserts that the foreclosure was invalid because
the mortgage was not properly assigned to Deutsche Bank,
however, Courts have routinely rejected similar challenges.
See Butler v. Deutsche Bank Trust Co.
Americas, 748 F.3d 28 (1st Cir. 2014)(allegation of
robo-signing even if true, does not undermine validity of
mortgage assignment; under Massachusetts law acts of trustee
in contravention of trust may be ratified, and are thus
voidable and therefore, mortgagor lacks standing to challenge
mortgage holder's possession; noting, without deciding,
that vast majority of courts to consider issue have
determined that despite express terms of N.Y. Est. Powers &
Trusts Law § 7-2.4, under New York Law, acts of trustee are
voidable not void). For these reasons, I find that Plaintiff
has failed to establish a likelihood of success on the merits
and therefore, her request for a TRO is denied.
Motion for Temporary Restraining Order Without Notice (Docket
No. 5) is denied.
 The Court electronically noticed the
Plaintiff that a hearing on her motion for a temporary
restraining order ("TRO") would be held on June 21,
2016 at 10:30 a.m. Shortly thereafter, the Court determined
that Plaintiff had failed to establish that issuance of a TRO
without notice would be proper in this case and therefore,
directed Plaintiff to serve notice of the hearing on
Defendants "forthwith." At the hearing,
Plaintiff's counsel represented that he was not aware of
the Court's order directing that notice be given to the
Defendants. A hearing was held in the absence of the
Defendants with the ...